Have Churches Heard the “Good News?” Equal Access Rights Revealed Religious Groups are Entitled to Equal Access to Public Facilities – Sharonrose Cannistraci, Esq. – – Nathaniel Bruno, Esq. –

Everybody loves good news. And in more ways than one, the U.S. Supreme Court handed out a precedent-setting treasure chest full of "good news" with its decision in the case of Good News Club v. Milford Central School, 533 U.S. 98 (2001), which upheld the First Amendment freedom of speech rights of religious groups. In light of the Good News decision, we are confident that religious organizations are entitled to equal access to use public facilities for religious purposes to the same extent that public facilities may be used by outside private parties for non-religious purposes.

The Message of Good News

In a nutshell, the Good News decision ruled that a public school violated the First Amendment free speech rights of the Good News Club (a Biblically-based club) by engaging in viewpoint discrimination. This discrimination occurred when the school refused to give the Good News Club an opportunity to use school premises for religious after-hours children's programs on the same basis that it gave such access to secular community groups.

The Supreme Court made it clear that Christian groups cannot be denied the opportunity to use public school facilities for religious worship and instruction based solely on the religious viewpoint of their activities. Instead, Christian groups must be evaluated under the same standards as secular groups, and given equal access to public facilities based on identical, neutral criteria that apply equally to all groups seeking to use such public facilities.

The school in Good News had a policy of allowing district residents to use school buildings during off-school hours to conduct meetings with topics and goals generally related to community welfare, instruction, and recreation. However, when two district residents applied to use school facilities to conduct a Good News Club for the instruction of children aged six to twelve, they were denied authorization because the school claimed that the Club's proposed activities of song-singing, praying, scripture memorization, and Biblical instruction amounted to religious worship, which was prohibited under its community use policy.

The U.S. Supreme Court resoundingly denounced the school's action. By allowing outside groups to assemble in its facilities to express civic messages related to patriotism, teamwork, loyalty, and other social perspectives (which were basically ways of teaching character development from different viewpoints), the school had become a limited public forum and could not discriminate against groups based on their religious viewpoint or message.

Understanding the Basics of Equal Access

The "Establishment Clause" of the First Amendment of the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion." Courts have implied in this clause the so-called concept of "separation of church and state." This doctrine is widely misunderstood. Objectors will often attempt to prohibit religious activity on public property by invoking the doctrine of separation of church and state. However, the Establishment Clause of the First Amendment and the implied doctrine of separation of church and state are not violated if a public entity avoids endorsement of religious activities and maintains neutrality toward religion.

The mere use of public school premises by private assemblies who hold religious meetings does not reasonably amount to school endorsement of religion or coercion against students, absent some other direct evidence of lack of school neutrality. Where, as with the Good News Club, religious meetings are held after regular school hours, are not sponsored by the school or teachers, and are open to any student who obtains parental consent, it is not likely that students or the public will think that the school is endorsing religion. Moreover, the school's neutrality is bolstered by the fact that it opens its doors to secular groups for their meetings.

More Good News -- Student Bible Clubs are Entitled to Equal Access to Public Secondary School Facilities for Student Christian Clubs on Campus

The United States Congress has actually passed a specific statute known as the “Equal Access Act” that explicitly gives public secondary school students the right to use public school facilities for religious student club activities by the same rules under which secular groups are allowed to use those facilities. 20 U.S.C. § 4071(a).

Basically, whenever a public secondary school allows any student groups unrelated to school curriculum to meet on campus, Christian student clubs must be given a fair opportunity to conduct on-campus meetings as well. Christian clubs cannot be discriminated against or denied the opportunity to meet on public school premises based on the religious nature of their meetings.

The school may apply neutral criteria to all student groups who wish to form clubs (such as limits on size and rules to preserve orderly conduct), and cannot engage in any direct sponsorship of the student group (such as promotion or leading by school officials or teachers).

In order to qualify, the Christian club must truly be student-initiated and student-controlled and the club must meet during otherwise non-instructional classroom times. This means that even if the school bars all outside groups (secular and religious) from use of school facilities, students may form their own religious campus club and cannot be denied equal access to their school's facilities.

Other Equal Access Victories for Religious Groups

In a case that paved the way for the Good News decision, the U.S. Supreme Court ruled that a school district violated the Establishment Clause when it prevented a private group from showing religious films at the school simply because the films contained a religious perspective. Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 393-94 (1993). Because the school did not generally object to all films devoid of religious messages being shown, its restriction on religious films amounted to unconstitutional viewpoint discrimination, and the group was given equal access.

Similarly, when a public university refused to grant funding to a student publication because it addressed issues from a religious perspective, the Court ruled that the school was engaging in viewpoint discrimination that transgressed the equal access rights held by people of religious faith. Rosenburger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). Because the school gave funds to other publications that contained non-religious perspectives and messages, its denial of funds and resources to a group wishing to express a religious viewpoint was unconstitutional. The Constitution demanded that equal access to school funds be given to religious student publications.

The Good News case has quickly led to other victories for Christian organizations seeking equal access to public school facilities. The federal Court of Appeals for Ninth Circuit (which includes California) upheld a permanent injunction that granted a Bible club the right to use an elementary school in Portland, Oregon for its after-school programs. Culbertson v. Oakridge School Dist. No. 76, 258 F.3d 1061 (9th Cir. 2001). The school had prevented the Christian club from meeting in its facilities solely because the education it provided was of a religious nature and, following Good News, that action was clearly impermissible viewpoint discrimination.

In another case, the Federal District Court of Colorado held that a school engaged in unconstitutional viewpoint discrimination when it allowed students of Columbine High School to decorate commemorative tiles for display following the tragic shootings at that school, but then proceeded to forbid students from placing religious messages or symbols on their tiles. Fleming v. Jefferson County School Dist. No. R-1, 170 F. Supp. 2d 1094 (D. Colo. 2001).

Limitations on the Scope of Equal Access Rights

It is important to emphasize that the rules of equal access do not give religious groups an unassailable or superior right to use public facilities whenever and wherever they please. Equal access principles are meant to ensure neutrality, fairness, and equality in the way that public entities manage the use of their facilities. Equal access does not grant religious groups any special privileges. Schools and public facilities may decide not to open their facilities for use or lease by any outside private groups, secular or religious. A blanket denial of access to all private groups is valid under the equal access doctrine.

Equal Access Rights Apply to All Public Facilities

Equal access principles provide religious groups with the right to use all types of public facilities under the same criteria that a public entity may apply to secular groups, not just school facilities. This was confirmed by the Seventh Circuit Court of Appeals when it held that a city could not restrict a religious group from using the publicly-owned and available "Village Hall" for a National Day of Prayer meeting, where the restriction was based on the religious nature of the proposed meeting. DeBoer v. Village of Oak Park, 267 F.3d 558 (7th Cir. 2001). Accordingly, religious groups may use all public facilities open for private use.

Click here to read the text of the “Equal Access Act”.

Protect the Church is sponsored by Christian attorneys and CPA's to provide periodic updates of the laws and legal and accounting issues of general interest to religious organizations. This article is not to be construed as specific legal advice or as a substitute for legal counsel regarding your case. Any ideas or opinions expressed herein should not be implemented without consulting an attorney or CPA familiar with your situation. To learn more about legal and accounting resources for ministries log onto our website at www.protectthechurch.org. If you have a specific legal issue or problem, you may contact Sharonrose Cannistraci, Esq. at 408.297.5400 ext. 206 or via e-mail.  If you have a tax or financial question, you may contact Joshua at his consulting firm Sozo Consulting at  650.906.7272.

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